Walleman: Separate ratings for knees under pre-2021 versions of DC 5259 and 5257 are allowed

Walleman v. McDonough, 35 Vet.App. 295 (2022)

HELD: The rule against pyramiding does not categorically preclude separate ratings under DCs 5257 and 5259 – even if instability is a residual of a meniscectomy – as long as there are other residuals that could warrant a separate rating under DC 5259. 

Summary: Veteran sought an increased rating for his left knee disability. The Board assigned 10% for DC 5260 (limited flexion) and 10% for DC 5259 (residuals of meniscectomy – “swelling, popping, locking, stiffness, grating, and clicking”). The Board acknowledged “slight instability,” but denied a separate rating under DC 5257, citing the rule against pyramiding.

The Court rejected the Board’s rationale. DC 5257 provides for 10%, 20%, and 30% ratings for recurrent subluxation or lateral instability that is mild, moderate, or severe. DC 5259 is for “cartilage, semilunar, removal of, symptomatic.” This DC does not define “symptomatic” or identify or exclude symptoms. And DC 5257 refers to only one symptom - instability. The Court determined that the appropriate way to assess these cases is to look at whether any of the symptoms are overlapping and whether there is a “common manifestation” (i.e., symptom) that would be improper to compensate more than once. This case illustrates a tug-of-war between two VA rating principles: the rule against pyramiding (38 CFR § 4.14) and the duty to maximize benefits (38 CFR § 4.25(b)).

Advocacy note: This case only applies to the pre-2021 version of these diagnostic codes.